www.elsblog.org - Bringing Data and Methods to Our Legal Madness

17 September 2007

When Do Justices Use Legislative History

James Brudney of the Ohio State University Moritz College of Law and Corey Ditslear of the University of North Texas political science department, have posted a new piece on SSRN. Entitled Liberal Justices' Reliance on
Legislative History: Principle, Strategy, and the Scalia Effect, it addresses the question of whether legislative history is used ideologically, in particular by the liberal justices. The abstract follows:

This article conducts an in-depth examination of Supreme Court Justices'
reliance on legislative history during the Burger, Rehnquist, and early Roberts
eras. In doing so, it makes two important contributions to current statutory
interpretation debates.First, the article presents a powerful case against the conventional wisdom
that legislative history is a "politicized" resource, invoked opportunistically
by federal judges. The premise that judges regularly rely on legislative history
to promote their preferred policy positions - if true - should find ample
support in the majority opinions of liberal Supreme Court Justices construing
liberal (pro-employee) labor and civil rights statutes. By analyzing all
320-plus majority opinions in workplace law authored by eight liberal Justices
from 1969-2006, the authors establish that legislative history reliance is
actually associated with a constraining set of results. When these eight
liberals use legislative history as part of their majority reasoning, they do so
to justify a higher proportion of their pro-employer outcomes than their
pro-employee decisions. The authors then review individual majority opinions to
demonstrate how this surprising pattern of reliance is based on neutral
doctrinal considerations. Liberal Justices use legislative history to illuminate
the existence and contours of complex statutory bargains that often favor
conservative or pro-employer positions. The authors consider alternative
explanations, premised on the institutional factor of who assigns majority
opinions and also the instrumental possibility that liberals withhold use of
legislative history in "minor" cases to enhance its value in more important
decisions. They conclude, however, that Justices Brennan, Marshall, Souter,
Stevens, and others are willing to follow so frequently a legislative history
trail leading away from their presumed ideological preferences mainly because
they have invoked this interpretive resource in principled fashion.The article's second major contribution is to identify and analyze the Scalia
Effect that has arisen with respect to liberal Justices' use of legislative
history since 1986. In the face of Justice Scalia's fervently expressed
opposition to legislative history, liberal Justices have opted not to rely on
that resource in a series of pro-employer majorities that Scalia joins. One
result of the liberals' strategic restraint is to make their use of legislative
history in remaining (mostly pro-employee) majority opinions appear more
ideological than was true before Scalia joined the Court. The authors also show
that liberal justices have special reasons for acting strategically in this
regard. When liberals rely on legislative history, Justice Scalia is
significantly less likely to join their majority opinions even when he votes on
their side; he also is significantly less likely to vote for the majority result
when these liberals rely on legislative history than when they do not.
Intriguingly, Justice Scalia's strong resistance to legislative history usage
does not extend to majorities authored by his conservative colleagues. Scalia
seems prepared to give these conservative colleagues a free ride: he is every
bit as likely to join their majorities, or vote for their results, when they
rely on legislative history as when they do not.

(Hat tip to Rick Hasen's legislation listserv.)

The authors' discussion of the "Scalia effect" reminds me of a moment in Cass Sunstein's Elements class in my first year of law school. Beware of what conclusions you draw from observations, he said. Back in the 1960s, for example, many country clubs issued new rules requiring men to wear coats and ties. But this was not because there was a move towards more formality. Rather it was the opposite. Social norms were moving away from formality and the clubs that wanted to preserve the old norms found it necessary, for the first time, to explicitly state them. Not quite analogous to the Scalia effect discussion, but both are an important reminder of the hazards of inferring causation.